Questions For ACTA Negotiators

from the wonder-if-they'll-answer-any-of-them dept

Sean Flynn from the Program on Information Justice and Intellectual Property at American University, sent over the list of questions that he and a group of others concerned about ACTA are planning to ask the ACTA negotiators today in a meeting in Switzerland, where the latest round of ACTA negotiations are under way. The meeting is set to take place at 7pm Swiss time, which should be about 10am this morning California time. I have no idea how many of these questions will get asked or answered -- or if it will make any difference, but I figured that some of you might be interested in reading the questions:

Will negotiators commit to continue releasing the text of the Agreement following completion of this week's negotiating round and subsequently until the completion (or abandonment) of negotiations?

Are negotiators reviewing the text of the Agreement to ensure it is fully consistent with the WTO TRIPS Agreement? Will the WTO or other independent legal experts be asked to review the text of the Agreement to ensure it is legally consistent with WTO rules? Will you provide clear and objective information regarding the evidence base upon which ACTA is purportedly justified, as far as international law, access to medicines and Internet are concerned?

Criminal sanctions are being negotiated, which imply the usage of police & judiciary systems, as proven by the presence among the negotiators of the EU Presidency. How can you justify any legitimacy for criminal sanctions (which highly impact fundamental freedoms) being negotiated outside of any democratic frame, in the secrecy of what is much more than a "trade agreement"?

What is the prevailing definition of a 'counterfeit' amongst negotiators? With respect to pharmaceuticals, is it the official position of negotiators that medicines which are suspected of patent infringement are counterfeit? If not, will you commit to ensure that the entirety of ACTA excludes patents from the scope of the agreement as the inclusion of patents is unrelated to the issue of counterfeit, and poses significant risks for access to medicines in developing countries?

Should customs authorities be authorized to seize medicines in 'transit countries', even when the medicines do not infringe any laws in the producing or importing countries? Will you commit to ensure that any inclusion of ex officio action and/or in-transit seizures is optional and not mandatory for countries? If permitted, do negotiators maintain that customs officials in exporting, transit or importing countries are capable of determining whether medicines infringe patents or whether a pharmaceutical product is 'confusingly similar'? Should there be any anti-abuse provisions included?

Could negotiators list out the relevant anti-abuse provisions in ACTA to ensure that rights holders do not use the Agreement to expand intellectual property protection for products, including medicines? ACTA currently contains no pro-consumer provisions and minimal protections for an alleged infringer, alongside maximum privileges and incentives for a right-holder to allege infringement (including extraordinarily limited liability for abuse of recourse measures). The enforcement provisions are universally mandatory while the protections are optional. There are virtually no references to exceptions and limitations, or to TRIPS flexibilities and safeguards. Do negotiators feel that sufficient balance has been achieved under the Agreement?

Are negotiators aware that the Agreement could create third party liability for suppliers of active pharmaceutical ingredients whose materials may be used in mislabeled products without their knowledge? What are the reasons for holding suppliers of active pharmaceutical ingredients unknowingly liable for mislabeled products?

ACTA can become a very strict text should certain proposals be followed, not leaving much room to maneuver for its application. Are contracting parties foreseeing to include in the agreement exceptions to preserve the public interest or flexibilities allowing for adaptation to different national realities? Will you remove institutional measures in which ACTA Member countries attempt to export heightened TRIPS-plus IP protections to other countries, and in particular developing countries

How do you guarantee that policies required to benefit from liability safe harbour for Internet service/access providers won't have the effect to force them to restrict fundamental freedoms -- such as freedom of expression and communication, privacy, and the right to a fair trial -- turning them, via contractual policies, into private copyright police/justice?

There have been no open hearings or other engagements with civil society since the text was released. Will you commit for the establishment of consistent mechanisms for the ongoing engagement of civil society? More generally, how are you going to fix the process to encourage greater public deliberation on the record, with access to text, and in a meaningful setting? And how are you going to fix all of the specific concerns raised in the previous questions and in all the critics upon ACTA made until now?

This is a pretty good list of questions if you're trying to understand just what is wrong with ACTA so far. Separately, Sean also included the presentation that he's giving in Switzerland about concerns over how ACTA will impact generic (legal) drugs in transit:

I still do not see these secret meetings as "negotiations". These meetings are more like gansters getting together and deciding on how to divide up their territories. The fact that no one is representing the people became apparent upon the release of details which were subsequently confirmed.

"There have been no open hearings or other engagements with civil society since the text was released. Will you commit for the establishment of consistent mechanisms for the ongoing engagement of civil society? More generally, how are you going to fix the process to encourage greater public deliberation on the record, with access to text, and in a meaningful setting? And how are you going to fix all of the specific concerns raised in the previous questions and in all the critics upon ACTA made until now? " - what one group or another wants will differ greatly from country to country and based on economic needs. one of the points of any treaty is that it sometimes goes against what you would consider your own apparent best interests, in order to deal with the greater good.

acta put to public discussion would be a dead issue, because the sort of people who post here would lead shouting match about their personal gripes, rather than looking over the whole package and seeing the greater goals.

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what one group or another wants will differ greatly from country to country and based on economic needs. one of the points of any treaty is that it sometimes goes against what you would consider your own apparent best interests, in order to deal with the greater good.

Interesting question. Whose greater good are we talking about here, the greater good of a relatively small and very rich multinational group of Intellectual Property Maximists or the greater good of a much larger population who believes that Intellectual Property Maximists have gone way too far and are now asking for rights that damage or destroy the rights and freedoms of others without due process?

I am not a pirate (though I suspect that the music and movie industries would claim I was one because of my attitudes towards infringement.) I do not use torrents to traffic in music or movies, though I do own an ipod (which has mp3s on it from my CDs, which according to the music industry is piracy.) If these Intellectual Property Maximists get their way through ACTA and other treaties, and they should suddenly decide that music on an ipod is illegal, and that there is no legal way to obtain music for an ipod, does that mean that I am now guilty of copyright infringement and should be put into jail? Our jails are way too full now, yet these guys have the gull to say that we should be thrown in jail for space shifting our music from CDs to an ipod where we can easily use them. 99% of the population will be in jail, without free access to resources to buy music, is that a world the RIAA and MPAA really want? Seems to me like the greater good is exactly the opposite of what ACTA and the Copyright Maximists are pushing.

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no greater good as in the overall well being and advancement of mankind.

we could end up spending much of our time and effort to advance the people the further behind forward very slightly, often against their beliefs, customs, religeons, and so on, working incredibly hard and spending untold resources to inch them forward against their wills. or we can spend them same time and effort to move forward knowledge, information, and science with the goal that in the long run, all of this will filter down to every corner of the world.

it is my standard opinion. if patent medicines go generic in 20 years, and time and effort spent on research gets us there 20 years sooner, does not all of society profit from the discovery in time anyway? it is wonderful to be able to provide patent medicines to the entire world, but at the same time, perhaps simple things like getting fed or combating diseases that were eradicated many years ago in the rest of the world is the more noble goal.

there is a point where the socialist nature of attempting to make everyone in the world equal at all times goes against the nature of human progress.

the greater good comes when people are more respectful of the rights of others. when they stop thinking about "me" and start thinking about the implications of their actions. sadly, piracy (and the internet) has taught so many people to be concerned with their own needs and meeting them without concern for others. that cannot continue forever, it too is the nature of progress.

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"does not all of society profit from the discovery in time anyway?"

Saying that society benefits from a discovery is different than saying that society benefits from patents. and I don't trust those who benefit the most, and have a conflict of interest in the matter, from patents (ie: they benefit from the monopoly and the discovery) to tell me that patents are best for society.

Another Question...

Realize this probably won't get added to the list, but a question I'd first ask is who is paying the negotiators (under whose payroll are they performing their duties) and what sort of safeguards are in place to assure that they aren't being bribed or illegally influenced by interested third parties?

If they are sworn employees of the Federal Government to act as negotiators for ACTA, then by law they must be fair and impartial and show no undue influence to any party (within the US.) When they were hired, they raised their hand and swore that they would protect and defend the constitution of the United States and would not withhold or deny the constitutional rights and freedoms to any person in the US (which includes a vast part of the United States whose freedoms may be withheld or denied by the ACTA in its current form.) Of course, being sworn in doesn't guarantee that they will live up to this, because I believe Senators/Representatives/Presidents all get sworn in using the same exact verbiage and they routinely break it (and some of them end up in jail for doing so.)

Everything I have read, however, makes these folks negotiating on ACTA look like non-government lobbyists though, which should be illegal. No private parties should be involved in negotiating treaties between States. It is one thing if it is Bill Clinton or Jimmy Carter who is along for the ride to help due to their knowledge, experience, and notoriety (but the negotiators should all be sworn officers of the government,) but it is not right if the negotiators are paid lobbyists from industry groups who are not sworn officers of the US and have no requirements to protect and defend the constitutional rights of all parties within the US.

My comment is on the new TechDirt buttons on the posts.
"What the hell are you doing profiling your users?"
I wouldn't click on one of those stupid buttons if you paid me.
What happens next? Only comments that meet the required numbers will be listed?
Right now the comments are in in the order entered and was very interesting and natural.
You are promoting a system of showing us the postings in the order of relevance, which is a system that can be abused. What stops me from multiple clicks?

Now we get to the question of "Who decides what is offensive?".
Is there going to be an evaluation committee that decides if the complaint is valid? You guys must not have enough to do there to be able to take on micromanaging your articles.

I love the irony though, censorship on the web site that bitches about censorship. It's only right because why would you be any different than anyone else? It's your website and you probably have been getting complaints and instead of practicing real non-biased reporting you kow-tow to a few complainers. I personally have never been offended by anyone's remarks on this site. I have read the postings of quite a few idiots including myself and the author. Are the above statements good enough reasons for censorship?

I always loved this site because I felt free to express myself. But censoring anyone for anything they say is flat out wrong and you will lose readers. I am seriously debating whether this site is remaining relevant. It's seems to me that my relevance will now be measured by clicking.

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Nobody implemented anything yet. You see a few buttons and you jump to a bunch of unsubstantiated conclusions. No one is prioritizing comments and no one, besides you, even mentioned the idea. Stop making a fool out of yourself TAM. Must be Monday again.

Sean Flynn from the Program on Information Justice and Intellectual Property at American University, sent over the list of questions that he and a group of others concerned about ACTA are planning to ask the ACTA negotiators today in a meeting in Switzerland, where the latest round of ACTA negotiations are under way.

Does he actually expect to get honest answers to any of these questions?